Marijuana Ballot Initiatives Approved in Nebraska, Defeated in Three Other States

Nebraska voters approved medical cannabis measures, while voters in Florida, North Dakota, and South Dakota rejected ballot initiatives to legalize recreational cannabis on election day.

Nebraska Medical Cannabis Measures

Nebraska voters approved Ballot Initiatives 437 and 438, which legalize and regulate medical cannabis in the state. While the measures were widely supported, there is lingering uncertainty due to pending legal challenges about the validity of signatures on each measure's petition for ballot access. It may be weeks before the Lancaster County District Court decides whether the initiatives were properly on the ballot.

Setting aside the pending legal challenges, the State Canvassing Board will meet to certify statewide voting totals on Dec. 2, 2024 (the fourth Monday following the election). Within 10 days after certification of the results by the State Canvassing Board, the governor must issue a proclamation declaring the approved measures to be in full force and effect.

Initiative 437, the Nebraska Medical Cannabis Patient Protection Act, would allow qualified patients to use, possess, and acquire up to five ounces of cannabis for the alleviation of a medical condition, its symptoms, or side effects of the condition's treatment. Caregivers would also be permitted to possess and acquire up to five ounces of cannabis on behalf of the qualified patient.

The law defines "qualified patient" as an individual 18 years of age or older with a written recommendation from a health care practitioner stating that, in the practitioner's professional judgment, the potential benefits of cannabis outweigh the potential harms for the alleviation of a patient's medical condition, its symptoms, or side effects of the condition's treatment. Individuals under 18 years of age require both a written recommendation from a health care practitioner and written permission of an authorized legal guardian or parent.

Initiative 438, the Nebraska Medical Cannabis Regulation Act, would create the Nebraska Medical Cannabis Commission and vests the commission with authority to "regulate all phases of the control of the possession, manufacture, distribution, delivery, and dispensing" of medical cannabis for medical purposes by registered cannabis establishments.

Neither ballot measure addresses employer rights or obligations with respect to medical cannabis or qualified patients. However, there may be some risk of employment discrimination claims associated with medical cannabis. The Nebraska Fair Employment Practice Act (NFEPA) does not protect current users of illegal drugs, but illegal drug use under the law does not include "the use of a drug taken under supervision by a licensed health care professional…or any other use authorized by…other provisions of state law." Additional legislation or guidance from Nebraska courts is needed to clarify the protections available to qualified patients under NFEPA, if any.

If the laws take effect, employers should consult with counsel before taking adverse employment action against qualified patients based on lawful medical cannabis use.